Thursday, May 01, 2008

US v. Brooks: "No Harm, No Foul"

CAAF today released a new opinion, United States v. Brooks, addressing a somewhat novel set of facts: the appellant complained that while he was incarcerated post-trial, confinement personnel eavesdropped on his conversations with appellate counsel and intercepted his mail.

Writing for a unanimous court, Judge Stucky ruled that even if true, the appellant failed to show prejudice: "Appellant has not cited, and the record fails to establish ... what issues he wanted to raise before the NMCCA but was unable to do so because of the chilling effect the brig officials’ actions had on his attorney-client communications." In the absence of such evidence, the court concluded, the appellant was due no relief.

Judge Stucky cautioned, however, that the decision should not be treated as a blank check for confinee monitoring: "a case in which an appellant can articulate particularized prejudice (let alone one in which the fruits of such eavesdropping were used at trial) would raise far more acute issues."


TC said...

TC said...

Hmm...I cannot view PDF's from work, so I do not know what this is coming from. But I will say while I was at Lackland the guards would routinely eavesdrop on calls/mail/letters/ etc.

They would pick up the phone on the other side of the glass (which you could barely see through). I remember I was waiting on hold for my counsel and one of the guards (Airman Humphrey---yes, I name names) said "man, they've been having you on hold for a while". I told him how about getting off the f---- phone when I am speaking to my lawyer.

Then there was the time they used subterfuge and did a surprise "inspection" while I was talking to my counsel about certain letters I wrote praising the prosecutor (cynically).

Then there was the times the guards made us work and received benefits and gratuity for our work details.

Yep, those were the days. I thought about raising a stink about it, but thanks to the decision of the court of appeals, I feel vindicated. They routinely prove my thesis:

They are useless and serve only to legitimize criminal acts perpetrated by the Government.

TC said...

Oopsy, I accidently posted on a really old thread I was looking at, hope it doesn't confuse anybody.

Anonymous said...

Seems like a "Catch 22." If the Gov't keeps monitoring, the prisoner never gets to articulate the chilling effect. No deterence. Despite the disclaimer, I don't see why this decision isn't license for Brig Officials to mess with inmates, now.

Does anybody know if any of the CAAF judges ever represented a criminal defendant in their previous legal career? (Thats not meant to be a sarcastic question. I seriously would like to know)

TC said...


Let's look at some of their bios (if they have one)......

Margaret A. Ryan
From Wikipedia, the free encyclopedia
Jump to: navigation, search
This article is about the U.S. judge. For the Scottish children's writer, see Margaret Ryan. For the film actor, see Meg Ryan.
Margaret A. Ryan is a Judge on the United States Court of Appeals for the Armed Forces. She was born in Chicago, Illinois.

Ryan was nominated by President George W. Bush on November 15, 2006 to replace Judge Herman F. Gierke, who retired September 30, 2006. Ryan was confirmed by the U.S. Senate on December 9, 2006 by unanimous consent during the closing hours of the 109th Congress

Prior to joining the court, Ryan was in private practice with various firms. Most recently, she was at Wiley Rein LLP from 2004 until her appointment to the court. Before that she was with Bartlit Beck Palenchar & Scott from 2002-2004 and Cooper Carvin & Rosenthal from 1999-2000. Ryan served on active duty for the United States Marine Corps from 1988-1992, and again as a judge advocate from 1995-1999. As a JAG, Ryan served as a Trial Counsel and Chief Trial Counsel in Okinawa, Japan and Quantico, Virginia. Ryan was then selected by General Charles C. Krulak, Commandant of the Marine Corps, to serve as his Aide de Camp.

Ryan received a B.A. from Knox College and got her J.D. from University of Notre Dame Law School as part of the Marine Corps Law Education Program. There she was on the editorial board of the Notre Dame Law Review. Ryan clerked for for Judge J. Michael Luttig on the Fourth Circuit from 2000-2001, and then for Justice Clarence Thomas on the United States Supreme Court from 2001-2002.

Retrieved from ""


Scott W. Stucky (a native of Kansas) is a federal appeals court judge appointed to the United States Court of Appeals for the Armed Forces in December 2006.

Judge Stucky graduated from Wichita State University (1970) and Harvard Law School (1973). He served as an Air Force judge advocate on active duty from 1973 to 1978. He was legislative counsel and principal legislative counsel to the Department of the Air Force from 1983 to 1996. From 1996 to 2006, he served as general counsel and minority counsel to the Senate Committee on Armed Services. He was appointed to the Court by President George W. Bush on December 20, 2006. Judge Stucky is a retired colonel in the Air Force Reserve.


Does anyone have anything on Judge Baker, Effron, and Erdmann's background?

Anonymous said...

This blog is deteriorating into more and more personal attacks on judges. It is unprofessional, to say the least.

Anonymous said...

Anon Judge,

What is, at least on this post, a "personal attack" by asking if they ever were a defense counsel and posting their bios?

Anonymous said...

I was the one who originally asked the question wondering whether any of the CAAF judges had defense experience - and meant nothing derogatory or personal. It was an honest question.

But I love the unintended innuendo that by posting a judge's OFFICIAL biography, what results is a "personal attack."

I wish this anonymous poster would be as worried about the Government invading someone's private sphere. Now that's personal.

Anonymous said...

You probably play with your private sphere.

Anonymous said...

Indeed. Both the call of nature and the Fourth Amendment affords me that right.

Now, Sunday at 9:35, go to church and seek forgiveness for your sins. Ask God to make you as concerned for regular citizens as you are for judges.

Christopher Mathews said...

This is the second time I've seen some variation on the theme "Dear Judge Anonymous" in response to a post critical about reporting or comments on CAAFlog. I don't really understand it, and I find it vaguely distasteful. let me explain why.

I think it's possible -- perhaps even likely -- that various sitting military judges occasionally read this blog. Some may even feel moved to comment. I can understand that there would be a host of reasons for doing so anonymously, so it's possible that any number of our no-name guests may actually be judges.

That said, I can't understand how one can single out a particular post as having been written by a judge. If it's being done because the author of that post seems sympathetic to judges, then it assumes that there is little to no likelihood that one could be so sympathetic without actually being on the bench -- an assumption that as far as I know is based on little, if any, empirical evidence.

It seems to me that it's more of an ad hominem critique of the poster, rather than an effort to engage his opinion: "you obviously must be a judge, and therefore writing out of self-interest." If the poster's position is so wrong-headed as to deserve challenge, then surely it's sufficient to challenge the position without making assumptions about the person taking it, yes?

Anonymous said...

Christopher Mathews,
What you say is certainly both reasonable and wise - a good overview on civil discourse. However, it is also true that sometimes people are just being a bit sarcastic. That's the way I take a comment like "Judge Anonymous" or what have you. I have done the same thing with prosecutors...feigning to "out" them. But I honestly respect prosectutors. Its a bit of a game and nothing nasty is meant by it. Civility, especially on a blog, which is a different medium, should not negate humor or a good "zinger." So while I respect your opinion, I also don't think we should get thin-skinned.